Taking On Monsanto

In 2001, the Monsanto corporation sued a 70-year-old farmer from Saskatchewan, Canada, named Percy Schmeiser for violating its patent on an herbicide-resistant canola seed the company had developed.

Monsanto’s suit alleged that Schmeiser had knowingly planted some of Monsanto’s patented “Roundup Ready” canola seed—so called because it has been genetically modified to withstand the company’s Roundup weed killer—without paying for it. Farmers who buy the product enter into an agreement with Monsanto, promising to buy new seed each growing season rather than save and replant seed, and to pay the company an annual fee.

Schmeiser claimed that the patented seed had blown onto his fields from a neighboring farm or passing trucks; Monsanto contended that he had knowingly saved and then used the seed without paying for it. Monsanto won the initial case, as well as two appeals, the last at the Canadian Supreme Court in 2004. Schmeiser went on to sue Monsanto for the expense of cleaning his fields of the Roundup Ready seed, and in 2008 won an out-of-court settlement in which the company agreed to pay those costs.

Schmeiser’s fight against Monsanto won him acclaim as a modern-day folk hero, a David in farmers’ overalls against the agribusiness Goliath. (Monsanto, which has a sharply worded page on its corporate website about the farmer, bristles at such laudatory imagery, contending, “The truth is Percy Schmeiser is not a hero. He’s simply a patent infringer who knows how to tell a good story.”) To Monsanto critics, meanwhile, his case is a powerful warning of the risks small farmers face if their fields are accidentally contaminated with the company’s genetically modified seeds—a risk so strong that they’ve filed a lawsuit to try to prevent similar cases in the future.

Late last month, the Public Patent Foundation, a nonprofit legal services organization based at New York’s Cardozo Law School, filed a federal lawsuit against Monsanto on behalf of about 60 U.S. and Canadian organic farmers, seed businesses and agricultural groups, among them the Massachusetts and Vermont chapters of the Northeast Organic Farming Association.

“The organic plaintiffs were forced to sue preemptively to protect themselves from being accused of patent infringement should they ever become contaminated by Monsanto’s genetically modified seed, something Monsanto has done to others in the past,” the Public Patent Foundation said in announcing the lawsuit.

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The lawsuit, Organic Seed Growers and Trade Association, et al. v. Monsanto, contends that the proliferation of genetically modified seeds put organic growers at particular risk—both of their crops being contaminated by a kind of seed that’s anathema to their approach to farming, and of legal challenges from the corporation if the seed inadvertently ends up in their fields.

“This case asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto’s transgenic seed should land on their property,” Dan Ravicher, executive director of the Public Patent Foundation and lead attorney in the case, said in announcing the suit. “It seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”

Genetically modified (GM) seed, the plaintiffs argue, can destroy organic versions of the same crop; after Monsanto introduced its GM canola seed, for instance, organic canola “became virtually extinct as a result of contamination.” And with Monsanto developing more and more GM seed, other crops are likewise threatened, the plaintiffs warn—”putting the future of all food, and indeed all agriculture, at stake,” in the words of the press announcement.

“Some say transgenic seed can coexist with organic seed, but history tells us that’s not possible, and it’s actually in Monsanto’s financial interest to eliminate organic seed so that they can have a total monopoly over our food supply,” Ravicher said.

The lawsuit, which asks the court to rule that Monsanto cannot sue organic farmers for patent infringement if their crops become contaminated with its GM seeds, attacks the validity of those patents in the first place. Ravicher argues that Monsanto’s patents don’t meet the “usefulness” requirement under patent law, and that, in fact, “genetically modified seed has negative economic and health effects, while the promised benefits of genetically modified seed—increased production and decreased herbicide use—are false.”

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Contacted by the Advocate for comment, Monsanto’s press office responded with a prepared statement declaring “many of [the] allegations” in the lawsuit suit to be false and saying the company is “prepared to vigorously defend ourselves.”

“It has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seed or traits are present in farmer’s [sic] fields as a result of inadvertent means,” the statement continued.

According to the company’s website, between 1997 and April of 2010, Monsanto filed 144 lawsuits over alleged patent violations in the U.S. Nine of those cases have gone to trial, with the company winning each time. The company also says that in “most” cases of alleged patent violations, the situation is settled without going to court. (The lawsuit calls Monsanto’s pursuit of such cases “aggressive,” sometimes involving intimidation and legal threats.)

Monsanto also defended the usefulness of its GM seeds, saying, “Biotechnology crops have provided a wealth of benefits to farmers and the environment. It is well established that farmers growing biotech crops realize many benefits including increased yields and lower production costs, and the use of these crops have [sic] resulted in an increase in the adoption of conservation tillage practices that reduce soil erosion. These benefits are the reason why farmers have overwhelmingly and willingly chosen to use these technologies year after year.” According to Monsanto, more than 2 billion acres of land worldwide have been planted with its seeds.

The company dismissed the plaintiffs’ contention that its patents are invalid and called the lawsuit a “publicity stunt designed to confuse the facts about American agriculture.”

“These efforts seek to reduce private and public investment in the development of new higher-yielding seed technologies,” the statement went on. “This attack comes at a time when the world needs every agricultural tool available to meet the needs of a growing population, expected to reach 9 billion people by 2050. …

“[W]e believe that farmers should have the ability to choose the best agricultural tools to farm their own land and serve their own end-market customers. We are confident that these multiple approaches can coexist side-by-side and sustainably meet the world’s food needs over the next 40 years,” said the company.

“We stand behind the American farmer [and] remain committed to investing in new tools to help American agriculture meet the needs of our growing world,” the statement concluded.

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Jack Kittredge is one farmer who doesn’t want Monsanto standing behind him—nor does he want its seeds ending up on his fields.

Kittredge, whose family has an organic farm in Barre, is also policy director for the Massachusetts chapter of the Northeast Organic Farming Association, one of the plaintiffs in the lawsuit. While many of the GM seeds released by Monsanto have, thus far, been for crops primarily grown in other parts of the country, Eastern farmers remain at risk, he warned.

One major threat to this region, he said, is the genetically modified alfalfa seed approved earlier this year by the USDA. That seed, he said, “would be a major blow in the Northeast,” where the crop is grown for feed for beef and dairy cattle. That USDA ruling has been legally challenged by the Center for Food Safety.

“Virtually every seed can be genetically engineered,” Kittredge said. And that puts farmers and seed companies at risk of unwittingly violating patents on those seeds. “The potential is wide open. If you plant crops, plant seed, if you have any connection with seeds, you could be in violation of patents.”

Kittredge also disputed Monsanto’s contention that organic and GM seeds are “multiple approaches” that can “coexist side by side.”

“I don’t think it’s realistic that they can coexist,” he said, noting the ease with which seeds can spread—on the wind, on the back of insects and animals. “Nature is too promiscuous.”

Plaintiffs in the suit expect it will take years for the case to be resolved, Kittredge said, although some relief could come sooner through the Center for Food Safety’s challenge to the USDA alfalfa decision. In the meantime, he said, NOFA is taking more active steps, calling on the public to ask food manufacturers and grocery stores not to make or sell genetically modified products, or to clearly label such products.

To judge from the amount of positive response NOFA’s gotten about the lawsuit, Kittredge added, it’s an issue many people care about. “We have been very buoyed up by the support we’ve gotten,” he said. “There’s obviously a lot of pent-up frustration and anger about this situation.”